Under the U.S. Supreme Court: State of the Union ducks healthcare

WASHINGTON, Jan. 29 (UPI) -- The healthcare reform law was like the bastard stepchild in President Obama's State of the Union address last week -- or maybe it could be better compared to the crazy aunt locked in the attic.

Despite some expectation the president would indicate softness on healthcare reform and the Affordable Care Act during the speech, the issue barely came up and zipped by. If you popped into the kitchen for a cup of tea or a Coke and a Twinkie, you missed it.

Forbes magazine, for one, expressed astonishment that the healthcare law was not a central theme in Obama's address. After the White House delivered a "talking points" memo for the speech last Tuesday, the magazine said, "Remarkably, the memo makes no mention of healthcare: neither the president's signature legislative achievement, nor his thoughts on entitlement reform."

MedPage Today, the online news service for medical professionals, pointed out after the address, "President Obama scarcely mentioned healthcare in his third State of the Union address Tuesday night, even as the healthcare reform law he championed is hanging in the balance at the Supreme Court."

In fact, "Obama devoted a mere one sentence of his more than one-hour address to healthcare reform, saying, 'I will not go back to the days when health insurance companies had unchecked power to cancel your policy, deny you coverage or charge women differently from men.'"

This was in contrast to past State of the Union addresses. Obama focused on the new law in 2010, and last year "said he was open to making changes to the law, but not to repealing it," MedPage Today noted.

Also last year, the president said he would look at proposals to bring down healthcare costs.

No such softness this year.

"President Obama made only glancing references to healthcare reform during his State of the Union address Tuesday night," The Hill newspaper observed. "Although Democrats insist that Obama will be able to campaign on the healthcare law, it was almost entirely absent from a speech that helped establish the themes and frames of his re-election campaign."

The newspaper, like MedPage Today, said, "It's by far the smallest amount of attention healthcare has gotten in Obama's three State of the Union addresses, nevermind the joint-session address he devoted entirely to trying to push healthcare across the finish line in 2009."

A new poll from the Kaiser Family Foundation suggests healthcare reform, and the federal law that implements it are deeply unpopular -- a strange condition for a reform designed to help the average American working family. Just as strangely, given healthcare reform's unpopularity, the poll suggests only a minority want to repeal it.

The January tracking poll indicates more than half of Americans say the U.S. Supreme Court should strike down the law's individual mandate: the requirement that everyone who can afford it should at least carry some insurance, or pay a fine, The Wall Street Journal reported Thursday.

The poll said 54 percent believe the high court should rule the mandate unconstitutional, 17 percent said the court should rule it constitutional and 29 percent didn't have an opinion or didn't answer.

Republicans opposed the mandate by a wide margin -- 73 percent. Democrats were more likely to support it -- 62 percent.

About 30 percent of Republicans said Republican presidential candidate Mitt Romney's views on healthcare were similar to Obama's, but almost half said they were different and 22 percent didn't answer, the Journal said.

Aside from how people view the Supreme Court case, the foundation reported the public seems divided. Not all the news is bad for the law: "As the anniversary of the Affordable Care Act approaches on March 23, Americans remain as divided on the law as ever, with 37 percent in January saying they have a favorable view of it, and 44 percent having an unfavorable view. At the same time, the share of the public that favors expanding the law (31 percent) or keeping it in its current form (19 percent) remains larger than the share who would like to see the law repealed outright (22 percent) or repealed and replaced with a Republican-backed alternative (18 percent)."

The foundation did not give the size of the poll sampling, but said the margin of error was 3 percentage points.

Meanwhile, the Obama administration and 26 states challenging the healthcare law are poised to butt heads in the Supreme Court, which set aside 5 1/2 hours for argument in late March.

The "merit brief" -- the brief outlining the states' arguments -- has arrived at the Supreme Court.

The healthcare reforms "impose new and substantial obligations on every corner of society, from individuals to insurers to employers to states. Those obligations are designed to work in tandem to expand both the demand for and the supply of health insurance, so as to achieve Congress' ultimate goal of 'near-universal coverage,'" the brief says.

"At the center of the ACA is a new mandate that commands nearly every individual to obtain and maintain a minimum level of health insurance coverage, thereby artificially increasing the demand for health insurance. ... A covered individual who fails to comply with the mandate is subject to a financial 'penalty.'"

The brief contends if the individual mandate is struck down, the whole law must go -- including among other things bans on refusing insurance to people with "pre-existing conditions" and on caps for individual benefits, meaning families can't be stuck with catastrophic hospital bills once the benefits run out.

"In keeping with the constitutional concerns about a mandate to maintain insurance, the version of the act that the House passed before the Senate passed the ACA included, along with a tax upon individuals who fail to obtain and maintain insurance, a severability clause instructing that, in the event any provision were held unconstitutional, the remainder of the act should not be affected," the brief says.

"The ACA that emerged from the Senate and was subsequently forced through the House, however, contained the individual mandate but no severability clause. Although numerous amendments were proposed during the ACA's drafting process to alleviate constitutional concerns by eliminating or limiting the reach of the mandate, each was defeated on the ground that doing so would make the act's objective of near-universal insurance coverage unattainable. As one of the act's principal architects put it, eliminating or limiting the mandate would 'gut and kill health reform,' as '[t]he effect [would be] to say no more … universal coverage.'"

The "severablity" of the individual mandate from the rest of the Affordable Care Act -- whether it can be struck down without invalidating the entire law -- is one of the main issues before the U.S. Supreme Court.

"Employer responsibility" provisions of the act "impose significant monetary penalties on any employer (including a state) with an average of at least 50 full-time equivalent employees that fails to provide all of those employees with a federally approved level of insurance coverage," the brief says. "The act also offers tax incentives for small businesses that purchase health insurance plans for their employees."

The act also forces an expansion of Medicaid, a state and federally funded health program which serves low-income families and the disabled.

The act's provisions effect "a massive expansion of Medicaid by requiring all participating states (which is to say, all states) to offer Medicaid to all individuals under the age of 65 with incomes up to 133 percent of the poverty level, with a 5 percent 'income disregard' provision that effectively raises that number to 138 percent. ... In addition to providing coverage for these newly eligible individuals, states must also provide coverage for millions of individuals who are uninsured despite being currently eligible for Medicaid, as those individuals will be forced onto the Medicaid rolls by the individual mandate," the brief says.

The brief says the Congressional Budget Office "predicts that at least 16 million individuals will enroll in Medicaid as a result of the combined effect of the expansion and the mandate, and that the federal component of Medicaid spending will increase by $434 billion by 2020 to cover the costs generated by that massive increase in enrollment."

In their separate petition to the Supreme Court, the states asked the justices to decide whether Congress exceeds "its enumerated powers [in the Constitution] and violate[s] basic principles of federalism when it coerces states into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program [Medicaid]?"

Any Medicaid cutoff is a very serious issue for the states. Currently, Medicaid accounts for more than 40 percent of all federal funds dispersed to states -- $251 billion in 2009 alone -- and approximately 7 percent of all federal spending.

The administration's merit briefs are on the way and, of course, will shed any entirely different light on the dispute. And friends-of-the-court briefs are pouring in to support one side or the other.

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